Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Wednesday, July 30, 2008

Ray Beckerman is a redoubtable and remarkable New York lawyer who has made it his mission to stop the RIAA's mass litigation campaign, which has now victimized almost 30,000 ordinary people, ranging from a 12 year girl living in subsidized housing to a dead grandmother. He has published an excellent article in the ABA's The Judges’ Journal, Volume 47, Number 3, Summer 2008. This is a journal that is read by the American judiciary.

Of relevance to Canada, he points out at the outset that:

The courts of other countries—notably the Netherlands and Canada—are not clogged with these cases for the simple reason that they were quick to recognize the paucity of the RIAA’s evidence and refused to permit the identities of Internet subscribers to be disclosed to the record companies.

It was the leadership of CIPPIC, who I was proud to represent, and the principled opposition mostly by Shaw but also of Telus that led to the successful resistance at the outset to a similar campaign in Canada. Canada was fortunate to have had the PIPEDA privacy legislation in place and and a federal judiciary with the wisdom and the will todispense justice in the BMG litigation at both the trial level and the appellate level.

One should be very skeptical about Canadian music industry claims that there is no intention to sue ordinary individuals in Canada. There was certainly a major effort by CRIA involving three prominent law firms to do so in 2004 - 2005 and there very likely will be renewed efforts at litigation against individuals for common place activity by CRIA and/or others if Bill C-61 is enacted as it now stands.

P.S. - Ray has posted an epilogue on some key developments since March, when the paper was essentially done.

Some very notable European and American academic expertise went into this document.

Here's the declaration:

The Signatories,- Recognising the increasing reliance on the Three-Step Test in international, regional and national copyright laws- Considering certain interpretations of the Three-Step Test at international level to be undesirable,- Perceiving that, in applying the Three-Step Test, national courts and legislatures have been wrongly influenced by restrictive interpretations of that Test,- Considering it desirable to set the interpretation of the Three-Step Test on a balanced basis,Declare as follows:1. The Three-Step Test constitutes an indivisible entirety.The three steps are to be considered together and as a whole in a comprehensive overall assessment.2. The Three-Step Test does not require limitations and exceptions to be interpreted narrowly. They are to be interpreted according to their objectives and purposes.3. The Three-Step Test’s restriction of limitations and exceptions to exclusive rights to certain special cases does not prevent (a) legislatures from introducing open ended limitations and exceptions, so long as the scope of such limitations and exceptions is reasonably foreseeable; or (b) courts from - applying existing statutory limitations and exceptions to similar factual circumstances mutatis mutandis; or - creating further limitations or exceptions, where possible within the legal systems of which they form a part.4. Limitations and exceptions do not conflict with a normal exploitation of protected subject matter, if they- are based on important competing considerations or- have the effect of countering unreasonable restraints on competition, notably on secondary markets, particularly where adequate compensation is ensured, whether or not by contractual means.5. In applying the Three-Step Test, account should be taken of the interests of original rightholders, as well as of those of subsequent rightholders.6. The Three-Step Test should be interpreted in a manner that respects the legitimate interests of third parties, including- interests deriving from human rights and fundamental freedoms;- interests in competition, notably on secondary markets; and- other public interests, notably in scientific progress and cultural, social, or economic development.

Concerning the third point, Bill says, in what may be a not too veiled reference to Canada:

The last statement refers of course to fair use and should be a helpful rebuke to the whispering campaign being conducted in certain national capitalsagainst the adoption of more liberal fair dealing laws.

My friends at CIPPIC (the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic) at the University of Ottawa are interested in hearing from individuals who are subscribers to Bell or Rogers’ high speed internet services and who are concerned about alleged internet throttling practices by Bell and Rogers. If you were or are a subscriber and would like to express your concerns, please contact Robert Hester at the CIPPIC.

Tuesday, July 22, 2008

A whole bunch of brilliant European professors, including such well known people as Lionel Bently at Cambridge, Thomas Dreier, the Director, Centre for Information Law, Universität Karlsruhe, Karlsruhe Institute of Technology, and Bernt Hugenholtz, Director, Institute for Information Law, University of Amsterdam have just signed an important op-ed in the Times of London on the ill-considered proposal by the EU to extend copyright in sound recordings to 95 years. These folks often disagree with each other on the many controversies inherent in IP law - so when they speak together, it’s very notable and important.

Large numbers of American professors have also banded together on many occasions and joined in on may controversial issues in the USA before the Courts or Congress. Often, they file their own amicus briefs and otherwise make their views well known through articles, op-eds and increasingly through blogs.

This leads me to wonder where the members of the Canadian IP academy are on Bill C-61, when there is now so much at stake.

Unless I’ve missed something, there has been very little publicly available useful analysis or opinion from Canadian professors other than from (in alphabetical order) Jeremy DeBeer, Michael Geist, Laura Murray (who is actually neither a lawyer nor a law professor but who knows more about this stuff than many law professors) and Sam Trosow.

There have been a couple of frankly unconvincing attempts to find or stake out the prospect of a middle ground. I will come back to this proverbial quest for a “middle ground” another day. Suffice it to say that we are soon going to celebrate the 300th anniversary of the 1709 Statute of Anne, the origin of modern copyright law. There has been no lasting peace or middle ground since then.

Frankly, I believe that Canadian academics owe a duty to speak out - whether together or separately - on what they believe is good or bad about Bill C-61. They owe this duty to their students, their colleagues, their institutions, and to the Canadian taxpayers. They are given tenure and paid well in order to be knowledgeable and to express their opinions. Let’s hear what they have to say.

Wednesday, July 16, 2008

Well, it seems that my "presumably with tongue firmly planted in cheek" and insouciant question as to whether there should be copyright royalties paid to ASCAP and BMI (the big American performing rights collectives) for the use of music to torture prisoners in Guantanamo, originally posted here on July 3, 2008, has gained some attention on some prominent blogs and in main stream media.

Here's what I said then:

Certain collectives are quick to collect money from those in nursing homes, hospitals, prisons etc. on the basis that these are "public" places. Never mind that the audience is captive and it's their home, like it or not.

Singer David Gray has warned that US interrogators playing loud music as a form of torture - including his own song Babylon - is no laughing matter.

"Only the novelty aspect of this story gets it noticed... Guantanamo greatest hits," he said.

"What we're talking about here is people in a darkened room, physically inhibited by handcuffs, bags over their heads and music blaring at them.

Leaving aside the legal niceties about whose law if any applies in that dreadful place, one can only wonder if ASCAP might not want a piece of the action. After all, it went after the Girl Guidesnot so long ago. And if it could try to make a buck off Girl Guides, who are nice people, why not alleged terrorists? Why should terrorists enjoy free music?

San Jose - On Friday, July 18, at 9 a.m., the Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose to protect the free speech and fair use rights of mother who posted a home movie of her son dancing to Prince on YouTube.

EFF represents Stephanie Lenz, who uploaded a 29-second clip of her son dancing in the family kitchen to the Prince song, "Let's Go Crazy," which is playing on a stereo in the background. Remarkably, Universal Music Publishing Group claimed that the video infringed its copyrights, and had the video yanked from YouTube. Lenz's lawsuit against Universal seeks to hold the company accountable for misrepresenting that her fair use violated its copyrights.

Mr. Martin’s order would require Comcast to stop its practice of blocking, provide details to the commission on the extent and manner in which the practice was used and give consumers detailed information on how it planned to manage its network in the future.

The F.C.C. approved a policy statement in September 2005 that outlined a set of principles meant to ensure that broadband networks were “widely deployed, open, affordable and accessible to all consumers.”

The principles, however, are “subject to reasonable network management.”

Comcast argues that the agency’s policy statement is not enforceable and that the commission has “never before provided any guidance on what it means by ‘reasonable network management.’ ”

The CRTC might hang its hat on the following provision of the Telecommunications Act:

27 (2)No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.

If the FCC has the power to punish Comcast and this is upheld, can the CRTC be far behind? And if the present Canadian regulatory framework somehow won't work, but the Americans get back to unthrottled internet, can Canada's Parliament be far behind?

Thursday, July 10, 2008

Yesterday, I heard Richard French, the very brilliant and usually convincing former Bell senior executive, CRTC Commissioner, Quebec Cabinet Minister and man of many other hats and skills, defend internet throttling at the University of Ottawa.

It seems that we must accept as a premise that there is network congestion. He didn’t offer any evidence or citations to elevate this beyond a mere premise. Somewhat like “weapons of mass congestion” (my term) that is caused by “weapons of mass distribution” (my term), namely P2P applications (his explanation).

Mr. French said that less than 20% of internet users are using more than 80% of the capacity and that throttling based upon applications (i.e. P2P) is not only justifiable but necessary and that other alternative such as usage based pricing are unrealistic.

He simply dismissed any suggestion that throttling is being done to satisfy copyright owners. There is however, evidence that suggests otherwise. For example, events such as this.

Net neutrality (and its antithesis, which is throttling) is going to become a very important issue. And I mean VERY.

The future of the internet is at stake. We are at risk that it is going to turn into a new version of cable and pay television, controlled by the usual suspects.

Wednesday, July 09, 2008

A visit today to the Canadian Heritage copyright website reveals the following, which has been posted for many months now about a couple of potentially very interesting studies - which are long overdue... and I mean LONG, LONG overdue.....

So, whassup? Lost in translation? J'en doute.

Studies Underway

Preamble

The Department of Canadian Heritage has commissioned the following studies. Upon completion, the reports will be posted on this site*. The views and opinions expressed in them are strictly those of their authors and do not necessarily represent those of the fund provider or of the Government of Canada.

Study Title: Music Copyright Management (update of 2002 project)Prepared By: Craig ParksExpected Completion Date: November 2007Summary: This study will analyze the relationship between various parties involved in the production and distribution of sound recordings in Canada

Study Title: Fair Dealing After CCHPrepared By: Professor Guiseppina D'AgostinoExpected Completion Date: January 2007Summary: This study will analyze the meaning of the recent important Supreme Court of Canada decision CCH Canadian Ltd. v. Law Society of Upper Canada.

Monday, July 07, 2008

Peter Jaszi and Pat Aufderheide - two brilliant professors in Washington, DC, have just published a guide called Code of Best Practices in Fair Use for Online Videoavailable here.

They had the input of such distinguished profs such as Pam Samuelson in this work.

It talks about what one can and can't do under American law in making online videos, smashups, parodies, etc.

A lot of what they say can be done in the USA won't be possible in Canada if Bill C-61 is enacted as is.

Canada still won't have a parody exception. Freedom of expression is still clearly trumped by copyright law in Canada. Although Canada's Supreme Court has recently signalled in WIC v. Simpson that freedom of expression may be given more scope than we had previously thought in defamation matters, we aren't there yet in copyright law and Bill C-61 may go a long way to shutting off that possibility.

So, read Peter and Pat's lucid and clear guide - and weep for what we don't have in Canada.

Friday, July 04, 2008

Yesterday's ruling in the American mega litigation involving Viacom v. YouTube & Google requires the handover of 12 terabytes of data containing info about viewers' login ID, IP addresses, time of viewing, etc. is a potentially devastating invasion of the privacy of millions of people, who had no expectation that this could ever happen. Here's the ruling and here's the NYTimes story.

As the privacy breach debacle by AOL in 2006 showed, it is not hard to find out a lot about particular people with far less information than appears to be at stake here. Knowing an IP address and time of access can identity a particular person in many cases.

We have the BMG ruling, in which I was pleased to have been involved. Here'stwo opposing views and a neutral summaryof that ruling by an editor, myself and another counsel on the other side. These set forth some of the basis of the debate in Canada, if a similar situation should arise.

Thursday, July 03, 2008

A very interesting and potentially intense story is developing in the USA about a person named Michael E. O’Neill nominated by President Bush for the Federal District Court. The veteran NYTimes reporter Adam Liptak reports some apparently significant allegations that, if true, could potentially amount to copyright infringement and/or plagiarism on the part of the nominee.

Certain collectives are quick to collect money from those in nursing homes, hospitals, prisons etc. on the basis that these are "public" places. Never mind that the audience is captive and it's their home, like it or not.

Singer David Gray has warned that US interrogators playing loud music as a form of torture - including his own song Babylon - is no laughing matter.

"Only the novelty aspect of this story gets it noticed... Guantanamo greatest hits," he said.

"What we're talking about here is people in a darkened room, physically inhibited by handcuffs, bags over their heads and music blaring at them.

Leaving aside the legal niceties about whose law if any applies in that dreadful place, one can only wonder if ASCAP might not want a piece of the action. After all, it went after the Girl Guides not so long ago. And if it could try to make a buck off Girl Guides, who are nice people, why not alleged terrorists? Why should terrorists enjoy free music?

CIRA is right to allow those who are harmed by illegal activity on a website to find out, in appropriate circumstances, who owns and operates that website. This should go beyond criminal behaviour and extend to civil causes of action as well. Here’s the new latest CIRA policy.

People and companies have a right to be able to get necessary information to communicate with and, if necessary, sue those engaged in cyber squatting, IP infringement or other illegal behaviour such as defamation. The new policy does not appear to deal with defamation, and it probably should - subject to the need to provide reasonable protection for whistle blowers and other safeguards. (See below).

It shouldn’t normally be necessary to get a court order to get this information. This is different than the invasion of a private space, as in the BMG case, where the 29 alleged infringers had a reasonable expectation of privacy and our Canadian Courts protected our privacy values. (I’m proud to have been very involved in that case).

A person who puts up a website for public viewing is actively seeking attention and must expect to forfeit some degree of privacy - and indeed routinely did so until the recent advent of CIRA’s ultra privacy protective policy.

By striving to protect registrant privacy, CIRA is putting itself between a rock and a hard place. It could - foreseeably - be sued by either side. So it has an incentive to get this policy and protocol right.

I’m not sure that CIRA’s latest policy does get this right yet - but it’s a step in the right direction. And I fail to understand why defamation is not a ground for a “dispute” under this policy. This may require a different type of handling, in order to protect the privacy of legitimate whistleblowers, etc. And everyone should bear in mind that freedom of expression was just given a big boost by the Canadian Supremes who have brought the law of defamation and “fair comment” much more in line with modern times in WIC Radio v. Simpson and our American friends, who to their credit cherish and defend free speech. So CIRA should be loath to hand over information where defamation is alleged unless it’s a pretty clear case. Whistle blowing doesn’t necessarily involve defamation.

And, interestingly, the law of Ontario, for example, reflects a long and ancient policy that newspapers cannot avail themselves of certain important defences in a defamation action “unless the names of the proprietor and publisher and the address of publication are stated either at the head of the editorials or on the front page of the newspaper.”

If in doubt, CIRA should err on the side of caution (i.e. privacy) and force the IP owner or allegedly defamed person to go to Court - and notify the domain name holder about the proceeding. This will probably be expensive for CIRA, but I’m guessing that CIRA has lots and lots of money.

Those who want to use the internet in a very private way can find ways to do so - although this may involve inconvenience (use of cyber cafes) and use of a blog or other means rather than a normal URL. Those who want a regular website such as www.infringersrus.ca or www.infringersrus.com cannot expect a whole lot of privacy, and certainly not anything close to absolute privacy.

There's a very lovely op-ed in today's NTimes by one Prof. David Hackett Fischer comparing Champlain and Jefferson - based on the proximity of July 3 (Quebec's 4ooth anniversary) to July 4 - the anniversary of the American Declaration of Independence.

The piece is about two great men with great ideas who were way ahead of their time.

Jefferson, of course, is a hero to most IP scholars for his famous passage:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation....

So - all of this is to say that there is much that is wonderful about the USA, especially its great instinct to defend freedom of speech and the pursuit of excellence.

There is even much that is good about its copyright law. Let's hope that Canada can find the good aspects of American copyright law and work them into our own law.

And in case anyone is wondering, no - I have not been invited to Ambassador Wilkins' 4th of July garden party.